Lance Armstrong's defense against the persistent doping allegations leveled against him, and the athlete's subsequent refusal to participate in the U.S. Anti-Doping Agency's prosecution of several doping-related charges against him, dominated sports headlines this summer. Interestingly, Armstrong's battle against the USADA also cast a spotlight on oft-cited concerns about due process in arbitration.
Last July, Armstrong's lawyers filed a request in the U.S. District Court for the Western District of Texas for an injunction barring the USADA from proceeding against him on the agency's doping charges. In court filings, Armstrong called the USADA arbitration a "kangaroo court" whose arbitrators were beholden to Armstrong's accusers. Armstrong's request was denied, and shortly thereafter, Armstrong issued a statement declining to participate further in the USADA's arbitral process. In his statement, Armstrong called the USADA's process "one-sided and unfair."
More fuel was poured on the fire when a former federal prosecutor said of the USADA's arbitral process: "Because the USADA uses its own special arbitration procedures, many of which make a meaningful defense all but impossible, the protections afforded a defendant in a court of law simply aren't there." Critics have been quick to poke holes in the attacks on the fairness of the USADA's arbitral process. However, Armstrong's arguments echo often stated concerns about the ultimate fairness of arbitration, and international arbitration in particular. When parties arbitrate claims on one party's "home turf," how can the other party ensure that local practice and bias will not influence the proceedings?
Some arbitral institutions actively regulate against the importation of local procedures into arbitration proceedings. For instance, the International Centre for Dispute Resolution's (ICDR) Guidelines for Arbitrators Concerning Exchanges of Information specifically state: "While arbitration must be a fair process, care must also be taken to prevent the importation of procedural measures and devices from different court systems, which may be considered conducive to fairness within those systems, but which are not appropriate to the conduct of arbitrations in an international context and which are inconsistent with an alternative form of dispute resolution that is simpler, less expensive and more expeditious." The Guidelines also state: "Depositions, interrogatories, and requests to admit, as developed in American court procedures, are generally not appropriate procedures for obtaining information in international arbitration."
Arbitration procedures do not mirror American court procedures, but that does not mean that arbitration is fundamentally unfair. Indeed, the procedurally pared-down nature of arbitration is often what draws international parties to arbitrate disputes against American companies rather than litigate in U.S. courts. At base, arbitration bills itself as a faster and cheaper alternative to courts; in order to provide a more expeditious means of dispute resolution, arbitral procedures must be simplified and streamlined.
For more information about international arbitration, please visit Fitch Law Partners LLP's international litigation and arbitration webpage.